Siegel's Family Court Calendar

“Many practicing lawyers may be unaware of the provisions of the statute which was first introduced by an individual Member of the Provincial Parliament.

The full text of a 2009 article by Yvonne Diedrick, a claims counsel with LawPro, can be found at www.LawPro.ca/magazinearchives.

In part, the article observes:

As lawyers, we tend not to think of apologizing as a method of dispute resolution. Thanks to new legislation recently passed by the Ontario government, and to borrow from Elton John, saying sorry no longer has to be the hardest word.

The Apology Act came into force on April 23, 2009. The legislation was introduced by David Orazietti, an MPP from Sault Ste. Marie, as a private members bill. The Act allows the communication of expressions of sorrow or regret without worrying that the comments can later be used adversely in a civil court.

I understand that the original proponents of the legislation came from the health care field. Historically health care professionals have avoided apologizing to patients for mistakes out of fear the apology would be considered an admission of guilt in civil proceedings. Over time, thinking has changed. Many doctors, nurses and other health care providers felt that apologizing would initiate the healing process by acknowledging to a patient that harm had been done and by promoting open communication and accountability between patient and health care provider.

…

As a result, the Act provides that an apology, made by or on behalf of a person:

• does not constitute an admission of fault or liability by the person:

• does not affect any insurance coverage or indemnity available despite any wording to the contrary in the contract of insurance or an act or law:

• shall not be taken into account in determining fault or liability in the matter: and

• is not admissible in any civil proceeding, administrative proceeding or arbitration as evidence of fault or liability in the matter.

In her article. Ms. Diedrick observes:

“No doubt the legislation was intended to encourage the early resolution of disputes by providing the protection of the Act if the apology is given before reaching costly out-of-court examinations such as discovery, or matters escalate to an arbitration or trial.”

Simaei v. Hannaford, 2015 ONSC 5041 (CanLII) at 24-27, 32-33

“Counsel for the applicant Penny Dorka, respondent on the motion, argued emphatically that in law a dog is equivalent to a chattel such as a “toaster”, and that there is no basis for this court to direct that such a chattel be returned from one party to another on an interim basis.

I disagree. Under the Family Law Rules, courts are required to promote resolution of cases in a manner which fair, just, and proportionate to the issues between the parties.”

Dorka v. Kumar, 2016 ONSC 8226 (CanLII) at 4-5

“The relevant provisions of the Partition Act and the FLA must be read together. Where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for sale, the matter should be deferred until the issues are decided under the FLA.  However, if the sale will not prejudice either spouse’s claim with respect to the home under the FLA, there is no reason to delay a sale: Silva v. Silva, 1990 CanLII 6718 (ON CA); 1 O.R. (3d) 436: 75 D.L.R. (4th) 415.

An owner of a home has a prima facie right to sale: Davis v. Davis, 1953 CanLII 148 (ON CA), [1954] O.R. 23 (C.A.); Brienza v. Brienza, 2014 ONSC 6942 (CanLII), at para. 22. A matrimonial home may be sold without spousal consent when the evidence does not support a realistic need to maintain the house as a home for the benefit or stability of the children pending trial: Jiang v. Zeng, 2019 ONSC 1457 (CanLII), at paras. 50 and 51.

In Jiang McGee J. stated, at paras. 36 – 38:

Exclusive possession is an Order only available pending the sale of a matrimonial home.  An Order for exclusive possession cannot be used to frustrate an owner’s prima facie right to the sale of the home.  The sale of the matrimonial home can be ordered prior to Trial on a motion, or at Trial.

The sale of a matrimonial home will generally be ordered on a motion unless there are children residing in the home, per section 24(3)(a) of the Family Law Act, or, an entitlement under the Act that would be otherwise defeated.

The purpose of section 24(3) is to preserve stability and continuity in the lives of children while their parents’ legal issues are determined.”

Khan v. Khan, 2019 ONSC 4687 (CanLII) at 10-12

“There is strong support in Ontario case law for the proposition that a change of custody may be the appropriate response to findings of pure alienation, even when the alienated child opposes the change and is of an age where, in general, his/her wishes would receive significant weight: see for example, Reeves v. Reeves, 2001 CarswellOnt 277 (Ont. S.C.J.); B.(S.G.) v. L.(S.J.), 2010 ONSC 3717 (Ont. S.C.J.); L.(A.G.) v. D.(K.B.) 2009, 93 O.R. (3d) 409 (Ont. S.C.J.).  I also accept that parental alienation is a form of emotional abuse with potential long term negative repercussions for the child.  A recognized Ontario authority on the subject of parental alienation has referred to some of Dr. Baker’s interesting longitudinal research to this effect in A.G.L. v. K.B.D. (2009), 2009 CanLII 943 (ON SC), 93 O.R. (3d) 409 (Ont. Sup. Ct.) at paras. 97 and 98:

97   Dr. Fidler testified that long-term research by Amy Baker on adults who were alienated from a parent as a child suffered depression in 70% of the individuals studied. Two thirds of the same population became divorced themselves — a quarter of that group more than once. The adults talked to researchers about interpersonal problems, dysfunctional managing of their lives and difficulties trusting other people. One third were reported to have substance abuse problems. Fifty percent of this group in this study became alienated from their own children.

98   Dr. Fidler also testified that the study in question found that the bulk of those involved had wished that “someone had called them on their strong wishes and statements not to see the other parent”, but that they could not do it themselves. They could not reverse their public stance against the alienated parent, but wished someone else would make the decision for them that they had to see that parent. This way, the child could “save face”.”

Fielding v. Fielding, 2013 ONSC 5102 (CanLII) at 165

“The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody order is appropriate:

1. 1. 1. There must be evidence of historical communication between the parents and appropriate communication between them.
      2. It can’t be ordered in the hope that it will improve their communication.
      3. Just because both parents are fit does not mean that joint custody should be ordered.
      4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
      5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
      6. The younger the child, the more important communication is.

Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests. See: Graham v. Butto, 2008 ONCA 260 (CanLII); Roy v. Roy 2006 Canlii 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872 (Ont. C.A.).

Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. See: Griffiths v. Griffiths 2005 ONCJ 235 (CanLII), 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 CanLII 6423 (ON SC), 2009 CanLII 6423 (Ont. SCJ.).

Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour.  However, where the conflict is extreme and there is substantial blame to be leveled against both parents, a joint or shared custody approach is not appropriate. See: Geremia v. Harb 2008 CanLII 19764 (ON SC), 2008 CanLII 19764 (Ont. S.C). 

In recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship:  See:  Garrow v. Woycheshen, 2008 ONCJ 686 (CanLII), 2008 ONCJ 686, (Ont. C.J.); Hsiung v. Tsioutsioulas, 2011 ONCJ 517 (CanLII).” 

G.T.B. v. Z.B.B., 2014 ONCJ 382 (CanLII) at 23-27

“Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order: Quaresma v. Bathurst, (2008), O.J. NO. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); and Hatcher v. Hatcher, [2009] O.J. No. 1343 (Ont. Sup.Ct.).”

Godard v. Godard, 2015 ONCA 568 (CanLII) at 28

“Section 40 of the Family Law Act allows for an order restraining the depletion of a spouse’s property that would impair or defeat a support claim.  I made an order for interim spousal support with ancillary relief.  There is nothing in the evidence on this motion to indicate that the respondent has either refused or is unable to comply with that order. I therefore conclude that s. 40 of the Act does not apply to allow for a non-depletion order in these circumstances as there is no evidence that depletion of this property would impair or defeat the applicant’s claim for spousal support.  If the applicant seeks the preservation of the property in respect of his claims in trust, joint venture and unjust enrichment, in my view, s. 40 does not apply as it is not connected to a support obligation.  Further, an order under s. 40 is usually made when there is evidence that the payor is not complying with a support order or there is evidence of blameworthy conduct: Keyes v. Keyes, 2015 ONSC 1660 (CanLII) at paras. 74-76.  I acknowledge that the parties have each raised questions about the other’s conduct in their written submissions; however, in my view, there is no proper evidence of either non-compliance or blameworthy conduct to warrant the order under this section.

The Family Law Rules do not provide for an interim preservation order.  Section 1(7) of the Family Law Rules provides that if these rules do not cover a matter adequately, the court may give directions and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers appropriate, by reference to the Rules of Civil Procedure.  However, the Court of Appeal has held that resort to r. 1(7) will be a rare instance as the Family Law Rules reflect the fact that family litigation is different from civil litigation: Frick v. Frick, 2016 ONCA 799 (CanLII) at paras. 11-12.  That said, the nature of the applicant’s trust, unjust enrichment and joint venture claims are such that it could be said that this is one of those rare instances where resort to the civil rules is appropriate. 

Although the applicant referred to r. 45 of the Rules of Civil Procedure, in my view the appropriate rule under which to seek this relief is r. 40, pertaining to a Mareva injunction and s. 101(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 as amended.  As explained by Kristjanson J. in Laliberte v. Monteith, 2018 ONSC 7032 (CanLII) at para. 31 a Mareva injunction is intended to prevent the dissipation of assets pending the determination of a civil matter.

In Karpacheva v. Karpacheva, 2018 ONSC 4563 (CanLII) at para. 29 Trimble J. noted that generally, Courts should rarely issue orders freezing assets before judgment against the owner of those assets.  They are granted where the claimant has a reasonable and justiciable cause of action and there is serious risk the assets will be dissipated to avoid judgment and execution.  At paragraph 33, Trimble J. set out the criteria the moving party must satisfy to impose a Mareva injunction. These are guidelines for the court to consider as opposed to rigid criteria:

a.  establish a strong prima facie case;

b.  make full and fair disclosure of all material matters within his or her knowledge;

c.  give particulars of the claim against the defendant, stating the grounds of the claim, the amount thereof, and the points that could be fairly made against it by the defendant;

d.  establish that there is a serious risk of the assets being removed out of the jurisdiction, or disposed of within the jurisdiction, or otherwise dealt with before judgment; and

e.  give an undertaking as to damages.”

Hadaro v. Patten, 2019 ONSC 4574 (CanLII) at 12-15

“In Zagdanski v. Zagdanski, 2001 CanLII 27981 (ONSC), the court ordered an advance on equalization in the amount of $700,000 to the wife on a motion for partial summary judgment. In doing so, the court set out certain parameters for making such an order. They include (my summary):

a.  There will be little or no chance that the amount of the advance will exceed the final equalization amount;

b.  There will be a degree of certainty about the right to an equalization payment and the minimum amount;

c.  There is a reasonable requirement for funds in advance of any final determination of the case, and;

d.  Fairness, prejudice or delay require that such a payment be made.”

Levine v. Levine, 2018 ONSC 4620 (CanLII) at 18

“The purpose of a Default Hearing is to require the payor to come before the court to explain his default: Family Responsibility and Support Arrears Enforcement Act, 1996, “FRSAEA”, S.O. 1996, c. 31, as. am, s. 41. The central issues are the amount of arrears and the payor’s ability to pay. Payors are presumed to have the ability to pay the arrears and to make subsequent payments under the order unless the payor meets his onus to prove the contrary: FRSAEA, s. 41(9). The Court may adjourn the hearing and may make a temporary order, which may include all of the relief available under s. 41(10) of the FRSAEA, including a period of imprisonment: Fisher v. Ontario (Director, Family Responsibility Office), 2008 ONCA 815.

Director, Family Responsibility Office for the benefit of Edith Marie Marielle Bernard v. Fuhgeh, 2019 ONSC 4531 (CanLII) at 16

“Rule 1(8) of the Family Law Rules reads as follows:

FAILURE TO OBEY ORDER

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order. O. Reg. 322/13, s. 1

In 2014, Rule 1(8) was amended, removing the earlier requirement that the failure to obey an order be “wilful” for the Court to be able to dismiss a party’s claim. The jurisprudence under former subrules 1(8) and 14(23) and is still applicable and sets out the relevant principles.  See Bullock v. Bullock, 2017 ONSC 1719 at 38, 39.

Where there has been a failure to obey a Court Order, the Court may make any order that it considers necessary for a just determination of the matter, including dismissing the claim. The words “just determination” are sufficiently broad to include protecting the administration of justice, which is at stake when a party wilfully disobeys an Order. Hughes v. Hughes, 2007 CanLII 10905 (ON SC), 2007 CarswellOnt 1977.

In Ferguson v. Charlton, 2008 ONCJ 1 (CanLII), [2008] O.J. No. 486 (O.C.J.), Justice Spence set out a three stage process for approaching the application of Rule 1(8) as follows:

1.  Is there a triggering event that would allow a consideration of Rule 1(8)?

2.  Is it appropriate to exercise discretion in favour of the non-complying party? This discretion should be exercised only in “exceptional circumstances.”

3.  If discretion is not exercised in favour of the non-complying party, what is the appropriate remedy pursuant to the provisions of Rule 1(8)?

In Ferguson, supra, the father in 2007 sought rescission of arrears accumulated under an Order from 2003. Among other things, the father alleged that the mother had alienated the children from him. Justice Spence cited Justice Quinn in Gordon v. Starr, 2007 CanLII 35527 (ON SC), 2007 CarswellOnt 5438 in which he commented on the “offensiveness of allowing a party to obtain relief while in breach of a Court Order,” stating:

Court orders are not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences. One of the reasons that many family proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders. Ferguson, supra at 59.

The three stage process set out by Justice Spence in Ferguson, supra has been adopted and applied by the Ontario Superior Court in decisions including Bullock, supra, Dumont v. Lucescu, 2015 ONSC 494, Mark v. Cirillo-Mark, 2014 CarswellOnt 8429, and Chiaramonte v. Chiaramonte, 2015 ONSC 179.

The fact that a party does not act when he or she first learns that the other party is in non-compliance with an Order is not relevant. As Justice Quinn states in Hughes, supra, “A court should never be left at the mercy of litigants when it comes to defending and preserving the administration of Justice.” See Hughes, supra, at 26.”

Herman v. Rathbone, 2017 ONSC 4585 (CanLII) at 21-27